Opinion
Case No. 99 C 6964
February 13, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff, Vera Hill, sought judicial review of the final decision of Defendant, the Commissioner of Social Security (the "Commissioner"), that Hill was not entitled to Disability Insurance Benefits. On September 20, 2000, this Court entered an order reversing the final decision of the Commissioner and remanding the case to the Administrative Law Judge (the "ALJ") for further proceedings as to the extent and severity of Hill's nonexertional limitations and the existence of work that Hill is capable of performing in the economy. In determining the existence of such work, this Court advised the ALJ to consider taking evidence from a vocational expert.
By reason of the Commissioner's position on appeal, Hill now asks this Court for an award of attorney's fees pursuant to the Equal Access to Justice Act (the "EAJA"), 28 U.S.C. § 2412 (d). For the following reasons, Hill's motion is denied.
All parties have consented to have this Court conduct any and all proceedings, including the entry of final judgment. See 28 U.S.C. § 636 (c); Local R. 73.1(b).
I. Background
As more fully discussed in Hill v. Apfel, No. 99 C 6964 (N.D. Ill. Sept. 20, 2000), this case originated as an appeal from the final decision of the Commissioner denying Hill's Application for Disability Insurance Benefits. In support of her appeal, Hill claimed that the Commissioner erred in three ways. All of which, Hill argued, served as bases for reversal.First, Hill argued that the ALJ failed to articulate any reason for rejecting a favorable medical report by Dr. Ivanovic, Hill's treating cardiologist and cardiac surgeon. Second, Hill contended that the ALJ improperly discounted Hill's excess pain testimony. And third, Hill opposed the ALJ's reliance on the Medical-Vocational Guidelines (the "Grid") in making the decision.
The Medical-Vocational Guidelines are found in Appendix 2 to Subpart P of Part 404 in the Code of Federal Regulations. See 20 C.F.R. ch. III, pt. 404, subpt. P, app. 2. The guidelines include detailed grid regulations that determine whether a claimant has the ability to perform substantial work.
In the end, Hill's third basis for appeal carried the day. The matter of contention concerned the ALJ's reliance on the Grid in order to find Hill not disabled. Apparently, the ALJ justified his use of the Grid on the belief that Hill could perform a wide range of light work, notwithstanding Hill's nonexertional limitations. (R. at 19.) In cases where the claimant's nonexertional limitations would have "very little" impact on the claimant's range of work, such reliance on the Grid, as acknowledged by this Court, would be proper. Hill, No. 99 C 6964, at 20-22.
However, in this case, evidence raised doubt that Hill could perform a wide range of light work. For instance, a vocational assessment specialist opined that Hill could not perform her past work as a trimmer, which is regarded as light work. (R. at 109.) And some medical reports suggested that Hill would be more restricted in work than the ALJ might have believed. (R. at 241.)
The ALJ never discussed why he ignored the opinion of the vocational assessment specialist, nor did he articulate any reason for picking and choosing among the somewhat varied medical reports. This was the basis of our concern. And this is why we reversed the Commissioner's final decision and remanded the case to the ALJ.
Consequently, on remand, this Court instructed the ALJ to explain and determine the severity and extent of Hill's nonexertional limitations and the effect those limitations have on Hill's occupational base. If necessary, the ALJ was further instructed to consult a vocational expert.
II. Discussion
In her motion, Hill asserts that she is entitled to attorney's fees under the EAJA because the Commissioner had no substantial justification for arguing on appeal that the ALJ's reliance on the Grid was proper. The EAJA is a fee- shifting statute that relieves social security claimants of the financial burden of contesting unreasonable decisions by the Commissioner. See 28 U.S.C. § 2412 (d). To collect fees and expenses incurred in a civil action under the EAJA, the claimant must be a prevailing party and the Commissioner's position must not be substantially justified. See Id. § 2412(d)(1)(A). Fees and expenses will not be awarded, however, if special circumstances would make the award unjust. See id.
The position of the Commissioner that must be substantially justified includes not only the legal position that the commissioner took in the underlying litigation, but also the position that the Commissioner took prior to the litigation — whether that involves action or inaction. See Cummings v. Sullivan, 950 F.2d 492, 497 (7th Cir. 1991); Phil Smidt Son, Inc. v. Nat'l Labor Relations Bd., 810 F.2d 638, 641-42 (7th Cir. 1987). Yet the court must arrive at a single conclusion encompassing the entire civil action, rather than making discrete findings as to the Commissioner's posture on any individual matter. See Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996). Hence, the case must be treated as "an inclusive whole." Comm'r v. Jean, 496 U.S. 154, 161-62 (1990).
A position is substantially justified if it is "`justified in substance or in the main'— that is, justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). As the Supreme Court elaborated, "[A] position can be justified even though it is not correct. . . [the position] can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. at 566 n. 2. The burden of showing a substantial justification falls on the Commissioner. See DeFrancesco v. Sullivan, 803 F. Supp. 1332, 1336 (N.D. Ill. 1992); Roberts v. Heckler, 636 F. Supp. 136, 137 (N.D. Ill. 1986).
In this case, the Commissioner has met its burden of showing substantial justification. As the parties point out, two Social Security Rulings — SSR 83-14 and SSR 85-15 — offer guidance on the applicability of the Grid to this case. Essentially, both Rulings provide the same recommendations.
If the evidence shows that a claimant's nonexertional limitations would have very little impact on the claimant's range of work, then the assistance of a vocational specialist is generally not needed to determine the range of work available to the claimant. If the evidence shows that a claimant's nonexertional limitations would significantly diminish the claimant's range of work, then the assistance of a vocational specialist is also generally not needed. On the other hand, for anything in between, the testimony of a vocational specialist will often be required. See SSR 83-14, 85-15.
Presently, the record may contain enough evidence for the ALJ to conduct this analysis and correctly conclude that reliance on the Grid is proper. See Luna v. Shalala, 22 F.3d 687, 691-92 (7th Cir. 1994) (finding use of the Grid appropriate because there was substantial evidence that the claimant's nonexertional limitations had no significant impact on his ability to perform the full range of sedentary work); Walker v. Bowen, 834 F.2d 635, 643-44 (7th Cir. 1987) (same); Nelson v. Sec'y of Health Human Servs., 770 F.2d 682, 685 (7th Cir. 1985) (same). For instance, Dr. Conroy did not impose any environmental limitations on Hill; Dr. Ivanovic opined that Hill should avoid moving machinery, temperature extremes, chemicals, dust, noise, fumes, and humidity; and Dr. Oh determined that Hill should avoid concentrated exposure to extreme cold and heat, wetness, humidity, fumes, and hazards. Dr. Oh also concluded that Hill could perform light work activity notwithstanding Hill's nonexertional limitations. Mr. Anderson, the vocational assessment specialist who relied on Dr. Oh's report, concurred, finding Hill capable of performing a sufficient number of jobs in the light work occupational base despite Hill's nonexertional limitations.
This is one of the reasons why this Court did not reverse the ALJ's decision on the ground that he improperly used the Grid. Rather, we reversed and remanded solely because the ALJ failed to adequately articulate the extent to which Hill's nonexertional limitations diminished Hill's capacity to work. At a minimum, even if the record does not contain enough evidence for the ALJ to conduct the required analysis on remand, this Court is convinced that the Commissioner's position on appeal — that the ALJ properly relied on the Grid — had a reasonable basis in fact. As illustrated above, evidence supported the ALJ's decision. In fact, the only physician who opined on the issue suggested that Hill could perform light work. Furthermore, nothing in the record wholly contradicts this assessment.
As Hill points out, we said:
We are certain. that the ALJ did not conduct an adequate analysis to determine whether [Hill's] nonexertional limitations significantly diminished the number of jobs available to [Hill]. And we are also certain that [the Commissioner's] arguments that the ALJ clearly stated the evidence relied on and must have determined that [Hill's] nonexertional limitations had only a "very little" impact on [Hill's] occupational base are without merit.
Hill, No. 99 C 6964, at 23. This Court continued:
The ALJ's minimal explanation and discussion on [the extent and severity of Hill's nonexertional limitations] cannot lead to such conclusions nor can the ALJ's analysis provide substantial evidence to justify reliance on the Grid, especially considering the differences among the medical reports.
Id.
Surely, a failure to adequately articulate the grounds of a decision in no way requires a finding that the Commissioner's position was not substantially justified. See Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992). Furthermore, the fact that the ALJ may find it necessary to consult a vocational expert on remand to assist in determining Hill's range of work is no cause for concern. See Cummings, 950 F.2d at 498- 99.
This is not a case like Roberts v. Heckler, 636 F. Supp. at 137, upon which Hill relies. Although the ALJ did not adequately articulate why he relied on the Grid and chose not to consider the testimony of a vocational expert, the ALJ did discuss the pertinent medical reports and consider Hill's nonexertional limitations, as evidenced in the decision. (R. at 16-20.) This Court never criticized the ALJ for making cursory findings as to Hill's limitations, like the court did in Roberts. See Roberts, 636 F. Supp. at 137 (pointing out that the ALJ "merely made a summary finding" that the claimant failed to equal the listings; "no rationale was offered").
Hill's argument that the Commissioner had no reasonable basis in law in defending the decision is also groundless. Neither SSR 83-14 nor SSR 85-15 impose a mandatory rule on the Commissioner under the facts of this case. See Cummings, 950 F.2d at 497-98 (recognizing that SSR 83-10, SSR 83-12, and SSR 83-13 permit but do not require the use of vocational specialists, and finding substantial justification for the Commissioner's position); cf. Griffin v. Apfel, No. 96 C 5627, 1997 WL 766886, at *2-3 (N.D. Ill. Dec. 3, 1997) (holding that the Commissioner's position was not substantially justified because the clear language of SSR 83-12 required the ALJ to consult a vocational expert). If either Ruling did, and the ALJ transgressed it, we would have reversed on that ground.
SSR 83-14 states that "[u]se of a vocational resource may be helpful in the evaluation of what appear to be `obvious' types of cases. In more complex situations, the assistance of a vocational resource may be necessary." SSR 83-14 continues:
1. Where it is clear that the [nonexertional limitation] has very little effect on the exertional occupational base, the conclusion directed by the appropriate rule in the [Grids] would not be affected.
2. Where it is clear that [nonexertional limitations] have significantly eroded the exertional job base set by the exertional limitations alone, the remaining portion of the job base will guide the decision.
3. Where the adjudicator does not have a clear understanding of the effects of [the nonexertional limitations] on the job base, the services of a VS will be necessary.
SSR 85-15 provides the following advice:
Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.
Where an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions.
Where the environmental restriction falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VS.
At least our review of the Rulings cannot detect one. Although Hill repeatedly alleges that the Commissioner committed an error of law by not following the regulations, Hill never cites a specific provision of the regulations that imposes such a mandatory rule.
Plainly, the Rulings implicated here are advisory not mandatory. See Cummings, 950 F.2d at 497-98. And in cases such as this one, where the facts are not complex and evidence shows that the claimant can tolerate some noise, dust, etc., and still perform a wide range of light work, there is no mandatory rule that directs the ALJ to consider evidence from a vocational expert. Accordingly, based on the record and the applicable Rulings, the Commissioner's position on appeal had a reasonable basis in law.
Incidentally, this further distinguishes the case from Roberts. In Roberts, the court had reason to believe that the ALJ failed to adhere to SSR 83-19. 636 F. Supp. at 138.
III. Conclusion
Although we agreed with Hill on appeal that the ALJ failed to adequately articulate the extent to which Hill's nonexertional limitations diminished Hill's capacity to work, we disagree with Hill's assertion that the Commissioner had no reasonable basis in fact and law to argue that the ALJ's use of the Grid was proper. There is evidence in the record to support the Commissioner's position, including several medical reports and the opinion of a vocational assessment specialist. Additionally, nothing leads us to believe that the Commissioner's position was contrary to the guidelines contained in either SSR 83-14 or SSR 85-15.
As discussed, the ALJ's failure to adequately articulate reasons for relying on the Grid and not considering testimony from a vocational expert, does not equate to the Commissioner's position on appeal lacking substantial justification. Thus, for the reasons stated, Hill's motion for attorney's fees is denied.